Health Ombudsman v Flyger - [2019] QCAT 329

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Flyger [2019] QCAT 329

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

SUSAN JANE FLYGER

(respondent)

APPLICATION NO/S:

OCR141-18

MATTER TYPE:

Occupational regulation matters

DATE OF DECISION:

23 October 2019

DATE OF REASONS:

14 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:
Ms M Barnett
Mr B Dixon
MS S Harrop

ORDERS:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of six months.

4. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant instituted disciplinary proceedings against the respondent in relation to conduct that involved the respondent engaging in an intimate relationship with a prisoner of the prison at which she was employed as a registered nurse – where the prisoner was the respondent’s patient from time to time – where the respondent persisted with the relationship despite warnings from colleagues – where the applicant submits that the appropriate sanction ought to involve a period of preclusion from practice for up to two and a half years – where the conduct is so serious as to potentially warrant a lengthier period of suspension – where the respondent surrendered her registration – whether the period since surrender ought to be treated as a de facto suspension – whether the sanction proposed is appropriate

Health Ombudsman Act 2013 (Qld), s 103, 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
Healthcare Complaints Commissioner v Flynn [2009] NSWNMT 1
Healthcare Complaints Commission v Turner [2016] NSWCATOD 163
Health Ombudsman v Riek [2017] QCAT 173
MedicalBoard of Australia v Davis [2018] QCAT 215
Medical Board of Australia v Holding [2014] QCAT 632
Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403
Psychology Board of Australia v Cameron [2015] QCAT 227

REPRESENTATION:

Applicant:

V Dutta (sol) of the Office of the Health Ombudsman

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) referred a health service complaint against Susan Jane Flyger (“the respondent”) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”). At the request of the parties, the matter was heard and determined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 329
Decision Date: 23 October 2019

CaseChat Overview and Summary

In the case of Health Ombudsman v Flyger, the Health Ombudsman instituted disciplinary proceedings against the respondent, a registered nurse, regarding her conduct which involved engaging in an intimate relationship with a prisoner at the prison where she was employed. The prisoner was also the respondent’s patient on occasion. Despite warnings from colleagues, the respondent persisted with the relationship. The Ombudsman argued that the appropriate sanction should involve a period of preclusion from practice for up to two and a half years, but noted that the conduct was so serious it potentially warranted a lengthier period of suspension. The respondent had surrendered her registration, and the question arose whether the period since surrender should be treated as a de facto suspension, and whether the proposed sanction was appropriate.

The legal issues before the court included whether the respondent’s conduct constituted professional misconduct, the appropriate sanction to impose in response to the misconduct, and whether the period since the respondent surrendered her registration should be treated as a de facto suspension. The court had to consider the nature and gravity of the respondent's actions, the impact of those actions on her professional standing, and the objectives of professional discipline.

The court found that the respondent's conduct constituted professional misconduct, warranting a reprimand and disqualification from applying for registration for a period of six months. The court held that the misconduct was serious, given the breach of professional boundaries and trust, but did not find it necessary to impose a period of preclusion from practice beyond the disqualification period. The court also determined that the period since the respondent surrendered her registration should not be treated as a de facto suspension. The court concluded that the proposed sanction was appropriate in the circumstances, balancing the need for deterrence and protection of the public with the respondent's cooperation and remorse.

The orders made by the court included a reprimand for the respondent, a disqualification from applying for registration for a period of six months, and a direction that each party bear their own costs for the proceeding. These orders reflected the court’s assessment of the seriousness of the misconduct and the appropriate response to maintain public confidence in the profession.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of six months.

4. Each party must bear the party’s own costs for the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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